93 F. 481 -

93 F1d 481

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Case Text

THE F. W. VOSBURGH.

481

whom he procured to ship on the Retriever. His claim is simply to recover compensation for his services and for expenses incidental to securing a crew, and the reasons for allowing a lien upon a ship for money advanced to pay the wages of seamen have no existence in this case. The business of shipping agents is usually conducted wholly in a boarding house or an office upon land, and is as much a land business as the negotiations carried on by brokers for the purchase and sale of mining stocks or wheat, or negotiations leading up to the making of other nonmaritime contracts. I have recently had occasion to consider this subject with some care, and have become firmly convinced that brokers employed to negotiate contraets incidental to commerce carried on by vessels navigating the seas are not entitled to hold liens upon vessels for the compensation whieh they earn. Grauman v. The Humboldt, 86 Fed. 351. Exceptions sustained.

THE F. W. VOSBUHGH. THE DR. J. P. 'YHITBECK.

(District Court, E. D. i\ew York.

April' 8. 1899.)

FAILUUE TO ISSUE PUOCESS

1.

MARITIME LIENS - POSTPONEMENT BY LACHES ON LIBEL FILED.

The of a libelant in rem in having process issued for the seizure of the libeled vessel after the filing of his libel, by ""hich the vessel is allowed to pursue her ordinary c'Onstitutes laches, as against persons who thereafter and before her seizure furnish supplies to the vessel in good faith, and postpones his lien to theirs. A libelant entitled to recover damages for an injury against two vessels as joint and several wrongdoers may elect to proceed against either or both; and hence, where he joins both in his libel, his failure to issue process against one does not constitute laches of which the other can complain. though it is compelled by reason of such fact and the consequent intervention of other liens against its co-defendant to bear more than its just proportion of the recovery.

2.

SAME-RIGHTS OF CO-DEFENDANT.

On Application for Distribution of Fund Arising from Sale of Li. beled Vessels. James J. Macklin, for libelant. Goodrieh, Deady & Goodrich and Alexander & Ash, for subsequent lienors. Carpenter & Park, for the F. W. Vosburgh. THOMAS, District Judge. Heretofore a decree of this court deter" mined that the two tugs Vosburgh and Whitbeck were equally in fault for the collision resulting in injury to the libelant's barge. and payment of one-half damages and costs was awarded primarily against each tug, with a right of recourse to the other in the ease of the insufficiency of one tug to me its share. The collision oecurred on the t 19th day of December, 1892. A libel in rem was filed against both tugs on )Iarch 30, 1893. The Vosburgh voluntarily appeared and bonded. but the \Vhitbeek was not seiz.ed until July 7. 18D3. and then only on an order of the court made at the instanee of the Vosburgh.
93 F.-31

482

93 FEDERAL JtEPORTER.

Vosburgh gllve a stipulation for value, but was sold, @.n4,the fwnnants of the proceeds·· of sale applicable to the payment of decrees, to i wit, $586.41, are. in the registry of the court, from which the libelant Ilskfjl payment of !)ne-half of the decree Ql'q.ered to lienors· allege be paid by the Whitbeck. At th,is that are liens upon the funp. prior in right to that growing out of ,the collision, on account of the laches of the libelant in the seiaure of the Whitbeck; a.p.djLis the solution of this question that now ,engages the court. The claims for supplies furnished the Whitbeck, for which s.uch priority is asserted, are those of Offerman, $364 for coal; Sullivan, $97.4:1 for repairs; and Horre,$25.60 for coal. These supplies and repairs were all furnished during the year 1893, subsequently to the date of the. collision, which was December 19, 1892, and, to the date of the filing of the claim for collision, which was March 30, 1893, except Sullivan's account, which extends from November, 1892, to May, 1893. Process upon the claim for collision was issued July 7, 1893, subsequently to the accruing of the other claims, but prior to the' filing of the libel' for such other claims in this court. It will be observed that,although the libel for the collision was filed MarcQ 30, 1893, the application for process to issue was allowed to lie until July 7th of that year. The obvious purpose of this was to allow the tug Whitbeck tocontitme its operation in the harbor, either with or without an agreement with her owner respecting the matter. !nother words, after waiting from the date of the collision, December 19., 1892, to March 30, 1893, for the institution of a SUit, the libelant did on the latter date invoke the intervention of the law by filing his libel, and then' failed to apply for process for the space of three rp.onths, and during this time the libelant permitted, the tug to be operated, whereby:. persons. 'were influenced to aid her navigation by such supplies as her use demanded. It will be observed that it is not a case of the libelant neglecting to take measures to enforce his lien. He did' within suitable time file his libel, and thereupon, in the due· course of law,. process would have issued for the seizure of both vessels. But thereupon the libelant falled to take measures for' the usual'legal procedure for seizing the tugs. Whereupon the Vosburgh came in voluntarily and bonded, and it was only through her vigorous intervention that the Whitbeck was afterwards seized. In The Young America, 30 Fed. 791, 792, process was issued against the vessel, but the marshal let the. vessel ;go out of his custody and about her regular business; and the court held that the liens accruing while the vessel was so out of the actual custody of the marshal were not cut off by the issue of process, but were subsisting liens on the vessel. The court says:
"The rule exclUding subsequent liens cannc'lt be extended to vessels that are not actually,as well as constructively, in the marshal's possession. Where a plaintiff, as in, thIs case, obtainS only a nominal arrest of tbe vessel, and virtually directs that she be left to pursue her ordinary business, with its attendant liliblllt\es to other persons in contract or in tort, he must be held to have waived the benefit of the custody of the court as a protection against other liens, and to be estopped from claiming, as against third persons, the exemptions that belong only to a vessel in actual custody. Otherwise, not

,THE F. W. VOSBURGH.

483

only wouldtlilrd: persons be misled and deceived, but.ready means would be offered of vesse\s witllout liability to any liens at all. Such a practice would be a plainapuse of the process of the court."

How mach'the more should subsequent lienors be protected where the libelant has invo:Kedthe intervention of the court, and thereupon suspended its usual and suitable procedure! The learned judge in the case cited, furiher discussing the question of laches, said:
"As there is no fixed time to constitute laches applicable to all cases, it should be determined with reference to the equitable maxim, 'Sic utere tuo ut alienum non lrodas,'-enforce your own rights so as not to injure others. It would be in the highest degree inequitable to permit lienors like Putnam or the insurers in this case, who have claims far in excess of the valee of the vessel, to lie still when there was daily opportunity to enforce their claims by legal proceedings, and to permit the vessel to obtain credit in daily business on her own security from innocent third persons, when the prior lienors knew, but the latter lienors did not know, that the vessel could never be made to respond for a dollar of the credits thus obtained. The rule of justice and eqUity in such a case clearly demands that a comparatively brief period of inactivity, where there was full opportunity for attaching the vessel, should be held to constitute laches sufficient to postpone the prtor lien in favor of subsequent lienors, who were thus prejudiced by the delay and by the want of notice. . * Of course, there was no intention of any abandonment of the libelant's lien, or of an entire release or discharge of the vessel from suit; but, as respects third persons who were ignorant of the facts, it was equally to their prejudice.; and in all such cases I must hold the libelant's lien postponed to the later liens that accrue in consequence of such partial release, and without notice."

It is considered that the facts in the present case strongly demand the application of the principles and rules laid down in the opinion in The Young America, and that 1;be lien for the collision damages as regards the Whitbeck should be postponed in favor of the three subsequent liens mentioned. The unfortunate result of this decision is that ,the injury does not fall upon the libelant, where in broad justice it belongs; but as the judgment directs that, in the case of any insufficiency on the part .of either tug in the payment of the decree, recourse may be had to the other tug, and as the proceeds of the sale of the Whitbeck will be largely absorbed in the discharge of the liens, the decree for the collision damages must fall upon the Vosburgh. This is apparently inequitable, but the case falls so clearly within certain usual rules that an escape from the conclusion that the Vosburgh cannot be relieved is unavoidable. As the tugs were joint and several wrongdoers, the libelant was privileged to sue either or both, or to make each a formal party, and to seize either under the process of the court. Therefore his failure to seize the Whitbeck at all cannot be regarded as laches in favor of the Vosburgh, and consequently the staying of the process against the Whitbeck was the exercise of a right on the part of the libelant, so far as the Whitbeck is concerned, from' which no conclusions unfavorable to the libelant can be drawn. A person exercising a right cannot be charged with wrong. Under the rUles, the Vosburgh had a right to ask to have the Whitbeck brought in as a party, if she was not already a party; or, if she was a party, to ask that the,delayed process against her should be issued, and that she be seized thereunder. This course the Vosburgh did finally take. It was the privilege of the libelant to leave the Whit-

98 FEDERAL REPORTjlIR..

bec'k·ont·of the litigation altogether if he -saw fit, andit,:was the privilege of the :bring the Whitbeck into the litigation. The subsequent liens largely accrued subsequently to tne appearance of the Vosburgh, which was, on April 3,: 1$93; and, if there was any delay thereafter, in bringing in the Whitbeck, the fault to a considerable degree is ascribable to, the Vosburg)l, as she had the full right and power to compel theissuing of the process; but no application was illl\de therefor until June 27, 1893. Under these circumstances, it is thought that no relief can be afforded to the Vosburgh, although there was laches on the part of the libelant, so far as the subsequent lienors of the Whitbeck are' concerned.. An order will be prepared inac.cordance with the views here expressed.

THE AGGI. .(District Court, E. D. New York.
1.

April 7, 1899.) ,

The 'Inspection required as to the seaworthiness of a vessel is antlclpaTory, and not alonefor the discovery and cocrectionof defects from which baTID has arisen; and a system which contemplateS a general overhauling and inspection of the vessel only every four years, and between such times only a general e:xaminationby' the officers at the end of a voyage to ascertain whether there has been leakage, is inadequate to meet the requirements of, the. law. A steamship had a woodeufigurehead under her bowsprit, which was SUPP01'ted by scroll work extending back for several feet on each side of the vessel; to which It was secured by ,bolts passing thorough the sides, and· fastened by nuts on the inside. This 'scroll work was subject to the action of the seas in heavy weatl).er, especially when the ship was heavily ladEen; and such action had a tendency, ,at least, to loosen gradually the nuts on the bolts; if it did not necessarily do so when continued for any considerable time. and In such event the water could enter around the loosened bolts into the fore peak. The ship started.on a voyage of several: thousand miles, which would occupy some two months, and during which would occur the autumnal equinox. She was so heavily laden as to bring the scroll work withb:i. about nine feet of the water line. The fastenings of the scroll work had not been inspected for two :rears, and the only Inspectlonmade'previous to entering upon the voyage was to ascertain that there had not been previous leakage. A consignment of sugar was stowed in the fore peak, which was injured during the voyage by water entering around the loosened bolts securing the scroll work. The ship encountered severe weather during the voyage, but no more so than was reasonably e:xpectable. Held, that the facts were insufficient to sustain the burden resting on the owners to show due. diligence to render the ship seaworthy at the inception of the voyage, under the requirements of the Harter act.
SAME-PEIULS OF NAVIGATION-EVIDENCE OF SEAWORTHI:NESS. .TO CARGO.FnOM LEAKAGE., .,

2.

S.

Storms encountered during a voyage, although they inay have been an adequate'cause for an injury to the vessel resulting in leakage and damage to the' cargo, are not sufficient to relievE' the carrier from liability for such damage, nor from of proving seaworthiness, where 'they wer,e not of such an unusual character but that they should have been anticipated, and it Is not shown. that the Injury conld not have been provided against by and care with respect to the part injured before salling, and such inspection was not .made, nor care e:xerclsed. .